Cherokee Nation v. United States, 270 U.S. 476 (1926)

8/17/2019 Cherokee Nation v. United States, 270 U.S. 476 (1926)

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270 U.S. 476

46 S.Ct. 428

70 L.Ed. 694

CHEROKEE NATION

v.

UNITED STATES.

No. 198.

Argued March 8, 1926.

Decided April 12, 1926.

Messrs. Frank K. Nebeker and Frank J. Boudinot, both of Washington, D.

C., for appellant.

Mr. Assistant Attorney General Galloway, for the United States.

Mr. Chief Justice TAFT delivered the opinion of the Court.

1 In 1905, this court affirmed a judgment of the Court of Claims for the principal

of and the interest on four amounts due from the United States to the Cherokee

Nation. United States v. Cherokee Nation, 26 S. Ct. 588, 202 U. S. 101, 50 L.

Ed. 949; Id. 40 Ct. Cl. 252. The interest allowed in the judgment was 5 per cent.

on the four claims from the accruing of liability to their payment. Since that

judgment and its payment in full, the Cherokee Nation has presented to

Congress the claim that more than simple interest was due, that the principal

and interest due in 1895 should have been regarded as a lump sum, and thatthereafter interest on the total at 5 per cent. to the time of payment should have

been allowed. This, if granted, would be an additional sum of $2,216,091.76,

with 5 per cent. interest from the dates of previous credits till paid. A special

Act of Congress of March 3, 1919, 40 Stat. 1316, c. 103, provides in part as

follows:

2 'That jurisdiction is hereby conferred upon the Court of Claims to hear,

consider, and determine the claim of the Cherokee Nation against the UnitedStates for interest, in addition to all other interest heretofore allowed and paid,

alleged to be owing from the United States to the Cherokee Nation on the funds

arising from the judgment of the Court of Claims of May eighteenth, nineteen


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hundred and five (Fortieth Court of Claims Reports, page two hundred and

fifty-two), in favor of the Cherokee Nation. The said court is authorized,

empowered, and directed to carefully examine all laws, treaties, or agreements,

and especially the agreement between the United States and the Cherokee

Nation of December nineteenth, eighteen hundred and ninety-one, ratified by

the United States March third, eighteen hundred and ninety-three (Twenty-

seventh Statutes at Large, page six hundred and forty, section ten), in anymanner affecting or relating to the question of interest on said funds, as the

same shall be brought to the attention of the court by the Cherokee Nation

under this act. And if it shall be found that under any of the said treaties, laws,

or agreements interest on one or more of the said funds, either in whole or in

part, has not been paid and is rightfully owing from the United States to the

Cherokee Nation, the court shall render final judgment therefor against the

United States and in favor of the Cherokee Nation, either party to have the right

to appeal to the Supreme Court of the United States as in other cases.'

3 It is not necessary to recount the long and intricate history of the relations

between the United States and the Cherokee Nation. It is complicated by the

division between Cherokees into the Eastern Cherokees, who wished to

become civilized and remain in the states east of the Mississippi, and those who

preferred nomadic and hunting life in the West, and who first went to the

Indian Territory and were called the Old Settlers. Ultimately the Eastern

Cherokees were removed to the same place, and they and the Old Settlers wereunited in a common government again by the Treaty of 1846 (9 Stat. 871). The

sale and purchase and transfer of lands east and west of the Mississippi, the

distribution of these, the cost of removal of the various bands of the Nation to

Indian Territory, and other transactions involving expense were the subject of

discussion and dispute between the government and the Nation and its different

bands. In avowed conformity with the Treaty of 1846, Congress appropriated in

1852, the sum of $724,603 'in full satisfaction and a final settlement of all

claims and demands whatsoever of the Cherokee Nation against the UnitedStates.' 9 Stat. 573, c. 12. A full and final discharge was accordingly signed by

the representatives of the Cherokee Nation, but under protest. Other claims,

however, were thereafter made and paid, one of nearly $190,000 to the Old

Settlers. Then in a case of The Old Settlers v. United States, 27 Ct. Cl. 1,

affirmed by this court in 13 S. Ct. 650, 148 U. S. 427, 37 L. Ed. 509, a

judgment for $212,376.94 with interest from 1838 and an additional $4,100 was

given them.

4 In 1889, the United States desired to buy from the Cherokees what was known

as the Cherokee Outlet in Oklahoma, embracing 8,000,000 acres for settlement

as public land. Under the authority of section 14 of the Act of March 2, 1889,


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25 Stat. 1005, an agreement was made December 19, 1891, by the United

States with the Cherokee Nation, by the first article of which the Cherokee

Nation agreed to convey to the United States, 8,144,682.91 acres between the

96th and 100th degree of west longitude, south of the Kansas line, and

commonly known as the 'Cherokee Outlet.'

5 The fourth article of the agreement was as follows:

6 'Fourth. The United States shall, without delay, render to the Cherokee Nation,

through any agent appointed by authority of the national council, a complete

account of moneys due the Cherokee Nation under any of the treaties ratified in

the years 1817, 1819, 1825, 1828, 1833, 1835, 1836, 1846, 1866, and 1868, and

any laws passed by Congress of the United States for the purpose of carrying

said treaties, or any of them, into effect; and upon such accounting should the

Cherokee Nation, by its National Council, conclude and determine that suchaccounting is incorrect or unjust, then the Cherokee Nation shall have the right

within twelve (12) months to enter suit against the United States in the Court of

Claims, with the right of appeal to the Supreme Court of the United States by

either party, for any alleged or declared amount of money promised but

withheld by the United States from the Cherokee Nation, under any of said

treaties or laws, which may be claimed to be omitted from or improperly or

unjustly or illegally adjusted in said accounting; and the Congress of the United

States shall at its next session, after such case shall be finally decided andcertified to Congress according to law, appropriate a sufficient sum of money to

pay such judgment to the Cherokee Nation, should judgment be rendered in her

favor; or if it shall be found upon such accounting that any sum of money has

been so withheld, the amount shall be duly appropriated by Congress, payable

to the Cherokee Nation upon the order of its Antional Council, such

appropriation to be made by Congress if then in session, and if not, then at the

session immediately following such accounting.'

The sixth article was in part as follows:

7 'Sixth. That in addition to the foregoing enumerated considerations for the

cession and relinquishment of title to the lands hereinbefore provided the

United States shall pay to the Cherokee Nation, at such time and in such

manner as the Cherokee National Council shall determine, the sum of eight

million five hundred and ninety-five thousand seven hundred and thirty-six and

twelve one-hundredths ($8,595,736.12) dollars in excess of the sum of seven

hundred and twenty-eight thousand three hundred and eighty-nine and forty-six

one-hundredths ($728,389.46) dollars, the aggregate of amounts heretofore

appropriated by Congress and charged against the lands of the Cherokees west


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of the Arkansas river, and also in excess of the amount heretofore paid by the

Osage Indians for their reservation. So long as the money or any part of it shall

remain in the Treasury of the United States after this agreement shall have

become effective, such sum so left in the Treasury of the United States shall

bear interest at the rate of five per centum per annum, payable semiannually:

Provided, that the United States may at any time pay to said Cherokee Nation

the whole or any part of said sum and thereupon terminate the obligation of theUnited States in respect to so much thereof as shall be so paid and in respect to

any further interest upon the same.'

8 On January 4, 1892, the agreement of 1891 was approved by the Cherokee

National Council. The agreement was ratified by Congress by section 10 of the

Act of March 3, 1893 (27 Stat. 612, 640), which appropriated $295,736, to be

immediately available and the remaining sum of $8,300,000 it was provided

should be 'payable in five equal annual installments, commencing on the fourthday of March, eighteen hundred and ninety-five, and ending on the fourth day

of March, eighteen to bear interest at the rate of four per to bear interest at the

rate of our per centum per annum, to be paid annually.'

9 The act further provided that the acceptance by the Cherokee Nation of Indians

of any of the money appropriated as therein set forth should be considered and

taken and should operate as a full and complete relinquishment and

extinguishment of all the title, claim, and interest in and to said lands of theCherokee Nation.

10 The sum of $5,000 was appropriated by the act to enable the Commissioner of

Indian Affairs, under the direction of the Secretary of the Interior, 'to employ

such expert person or persons to properly render a complete account to the

Cherokee Nation of moneys due said Nation, as required in the fourth

subdivision of article II of said agreement.'

11 On May 17, 1893, a deed of cession was executed and delivered by the proper

authorities of the Cherokee Nation to the United States and the first installment

of the purchase money was paid to and accepted by the Cherokee Nation and

the United States thereupon took possession of said lands, and thereafter

disposed of the same. The other installments were duly and seasonably paid.

12 In pursuance of the Act of March 3, 1893, supra, the Secretary of the Interior promptly employed two expert accountants, Messrs. James A. Slade and Joseph

T. Bender, to prepare an account between the United States and the Cherokee

Nation, and on April 28, 1894, they filed it with the Secretary. The amounts


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Page 483

Under the Treaty of 1819:

Value of three tracts of land containing

1,700 acres at $1.25 per acre, to be added to the principal of the "school" fund.................. $ 2,125 00

(With interest from February 27,

1819, to date of payment.)

Under Treaty of 1835:

Amount paid for removal of Eastern

Cherokees to the Indian Territory,

improperly charged to treaty fund................... $1,111,284 70

(With interest from June 12, 1838,

to date of payment.)

Under Treaty of 1866:

Amount received by receiver of public

moneys at Independence, Kan., never

credited to Cherokee Nation.............................. $ 432 28

(With interest from January 1, 1874,

to date of payment.)

Under Act of Congress March 3, 1893:

Interest on $15,000 of Choctaw funds

applied in 1863 to relief of indigent

Cherokees, said interest being improperly

charged to Cherokee national fund..................... $ 20,406 25

(With interest from July 1, 1893, to

date of restoration of the principal

of the Cherokee funds, held in trust

in lieu of investments.)

This was transmitted by the Secretary of the Interior to the proper authorities of the

Cherokee Nation and it was accepted by act of the National Council approved

December 1, 1894. It was then transmitted by the Secretary to Congress on January

7, 1895. The principal due on said account on March 4, 1895, was $1,134,248.23,

and the interest was $3,162,279.34.

due the Cherokee Nation were summed up as follows:

13

14

15 Instead of making an appropriation for this amount, Congress on March 2,

1895, referred the report of the Secretary of the Interior to the Attorney Generaland authorized and directed him to review the conclusions of law reached by

the Department of the Interior in the account and report his conclusions at the

next regular session. 28 Stat. 795, c. 177. The Attorney General made his report


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Item 1: The sum of................................. $ 2,125 00

With interest therefrom at the rate of

5 per cent. from February 27, 1819,

to date of payment.

Item 2: The sum of.............................. $1,111,284 70

With interest thereon at the rate of 5

per cent. from June 12, 1838, to date

of payment.

Item 3: The sum of................................... $ 432 28

With interest thereon at the rate of 5

per cent. from January 1, 1874, to

December 2, 1895, which differed with the report of the Secretary of the

Interior and the Slade and Bender report, holding that under the Treaty of 1846

and the settlement of 1852 by appropriation of Congress, the Cherokees were

properly charged with the expense of removal and that the item 2 of

$1,111,284.70 in the report was improperly charged to the United States. No

action was taken in settlement of the matter by Congress until July 1, 1902,

when by section 68 of the Act of July 1, 1902 (32 Stat. 726) it referred theclaims to the Court of Claims, as follows:

16 'Jurisdiction is hereby conferred upon the Court of Claims to examine, consider,

and adjudicate, with a right of appeal to the Supreme Court of the United States

by any party in interest feeling aggrieved at the decision of the Court of Claims,

any claim which the Cherokee Tribe, or any band thereof, arising under treaty

stipulations, may have against the United States, upon which suit shall be

instituted within two years after the approval of this act; and also to examine,consider, and adjudicate any claim which the United States may have against

said tribe, or any band thereof. * * *'

17 Under this act, the Cherokee Nation brought suit against the United States,

claiming the whole amount with interest found due by the Slade and Bender

account. Thereafter the Eastern Cherokees and the Eastern and Emigrant

Cherokees each brought suit under the Act of July 1, 1902, as amended by the

Act of March 3, 1903 (32 Stat. 996), against the United States, each claimingthe removal fund of $1,111,284.70. The three suits were consolidated by order

of the court, and were heard, considered, and decided together. The decree of

the Court of Claims, in conformity with its opinion and conclusion of law

entered March 20, 1905, was in part as follows:

18 'It is, this 18th day of May, A. D. 1905, adjudged, ordered, and decreed that the

plaintiff, the Cherokee Nation, do have and recover of and from the United

States as follows:

19


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date of payment.

Item 4: The sum of................................ $ 20,406 28

With interest thereon from July 1, 1903,

to date of payment."

Then followed directions as to the payment and distribution of the different items of

the judgment. 40 Ct. Cl. 252, 363, 364.

20

21 The case having come to this court on appeal, the judgment was affirmed on

April 30, 1906, with a modification, consisting of a direction that item 2,

$1,111,284.70, with interest at 5 per cent. from June 12, 1838, to date of

payment, should be distributed among 'the Eastern Cherokees as individuals,

whether east or west of the Mississippi, parties to the treaties of 1835-36 and

1846, and exclusive of Old Settlers.' United States v. Cherokee Nation, 26 S.

Ct. 588, 202 U. S. 101, 130, 131, 50 L. Ed. 949. On May 28, 1906, the Court of Claims entered a decree modifying its original decree to conform to the

mandate of the Supreme Court. In attempted satisfaction of the judgment of the

Court of Claims, an modified by the Supreme Court, and as directed by

subsequent appropriation acts, there has been paid to the Cherokee Nation the

sum of $5,158,005.54.

22 The Court of Claims held in the case before us that the plaintiff was not entitled

to recover any more interest and its petition was dismissed; hence this appeal.

23 The first question for our consideration is the effect of the act of 1919 in

referring the issue in this case to the Court of Claims. The judgment of this

court in the suit by the Cherokee Nation against the United States in March,

1905 (26 S. Ct. 588, 202 U. S. 101, 50 L. Ed. 949), already referred to, awarded

a large amount of interest. The question of interest was considered and decided,

and it is quite clear that, but for the special act of 1919, above quoted, the

question here mooted would have been foreclosed as res judicata. In passingthe act, Congress must have been well advised of this, and the only possible

construction therefore to be put upon it is that Congress has therein expressed

its desire, so far as the question of interest is concerned, to waive the effect of

the judgment as res judicata, and to direct the Court of Claims to re-examine it

and determine whether the interest therein allowed was all that should have

been allowed, or whether it should be found to be as now claimed by the

Cherokee Nation. The Solicitor General, representing the government, properly

concedes this to the correct view. The power of Congress to waive such anadjudication of course is clear. See Nock v. United States, 2 Ct. Cl. 451, Braden

v. United States, 16 Ct. Cl. 389, and United States v. Grant, 3 S. Ct. 585, 110

U. S. 225, 28 L. Ed. 127. Compare United States v. Realty Co., 16 S. Ct. 1120,


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163 U. S. 427, 41 L. Ed. 215; Allen v. Smith, 19 S. Ct. 446, 173 U. S. 389, 393,

402, 43 L. Ed. 741; United States v. Cook, 42 S. Ct. 200, 257 U. S. 523, 527,

66 L. Ed. 350; Work v. United States ex rel. Rives, 45 S. Ct. 252, 267 U. S.

175, 181, 69 L. Ed. 561; Mitchell v. United States, 45 S. Ct. 293, 267 U. S.

341, 346, 69 L. Ed. 644.

24 There is nothing before us which indicates that the present claim for a rest inthe matter of interest in 1895, was presented either to the Court of Claims or to

this court. It is a new argument not before considered. The argument is that the

consideration for the land to be conveyed under the agreement of 1891 was not

only the $8,500,000 to be paid, but also the appropriation by Congress of

money to pay the old accounts long due, and that the failure of Congress to

make the appropriation at the time agreed required that interest thereafter

should be awarded upon the lump sum of principal and interest as of that date,

in full payment of the purchase money for the land. The claim is that the failureof Congress to make the appropriation as stipulated in the contract became a

new terminus a quo from which the calculation of interest on everything then

due and owing must be calculated.

25 In taking up this argument, we should begin with the premise, well established

by the authorities, that a recovery of interest against the United States is not

authorized under a special act referring to the Court of Claims a suit founded

upon a contract with the United States unless the contract or the act expresslyauthorizes such interest. This is in accord with the general congressional policy

as shown in section 177 of the Judicial Code (Comp. St. § 1168), providing that

no interest shall be allowed on any claim up to the time of the rendition thereon

by the Court of Claims, unless upon a contract expressly stipulating for the

payment of interest. Tillson v. United States, 100 U. S. 43, 46, 25 L. Ed. 543;

Harvey v. United States, 5 S. Ct. 465, 113 U. S. 243, 249, 28 L. Ed. 987.

26 We have already held, in The Old Settlers Case, supra, and in United States v.Cherokee Nation, supra, that in the past financial dealings between the United

States and the Cherokee on debts due from the former to the latter, interest at 5

per cent. until payment was to be allowed as if stipulated. This result followed

from a decision by the Senate of the United States acting as umpire between the

two parties in 1850. In that capacity it adopted the following resolution:

27 'Resolved, that it is the sense of the Senate that interest at the rate of 5 per cent.

per annum should be allowed upon the sums found to be due to the Eastern and

Western Cherokees respectively, from the 12th day of June, 1838, until paid.'

Thus it was that the accountants Slade and Bender re orted that interest at 5 er


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28

cent. until paid should be allowed the Cherokees, not only on the items which

were due in 1850, but also on those which had accrued since, and, by the

ratification of their report by both parties, interest thus calculated becomes a

stipulated term in respect of the issue before us.

29 It is contended, however, by counsel for the Cherokee Nation, that the decision

of this court in 1906 so treats the breach of the contract by the government in

failing to make the appropriation in 1895 as to justify the claim that it was more

than a mere continuance of the failure to pay; that it was a new breach of a new

contract, requiring interest as upon a new default in a new debt of the sum total

of the original claim, with interest added down to 1895.

30 We cannot ascribe such an effect of the decision referred to. The chief

controversy in that case was as to the liability of the government at all for theremoval expenses of the Eastern Cherokees. It was argued on its behalf, as the

report of the case in the Court of Claims shows (40 Ct. Cl. 252, 307), that Slade

and Bender were merely accountants employed by the government to state the

account, and not to pass on the legal validity and effect of the Treaty of 1846

and the scope of the settlement evidenced by the appropriation and the signed

releases of 1852; that the Cherokees were not bound by the report as an account

stated or settled, but were given full right by the agreement of 1891 to contest

its correctness and to resort to court in respect to it; and that the government

could not be bound by such a report, in which the accountants exceeded their

authority as mere accountants, and exercised their functions as if authorized to

act as arbitrators or umpires. This court stated its adverse conclusion on this

point, by quoting and approving the language of Chief Justice Nott in the Court

of Claims (26 S. Ct. 588, 597, 202 U. S. 101, at pages 122, 123, 50 L. Ed. 949),

as follows:

31 'The court does not intend to imply that when the account of Slade and Bender

came into the hands of the Secretary of the Interior he was bound to transmit it

to the Cherokee Nation. On the contrary, the Cherokee Nation had not agreed

to be bound by the report of the accountants and could not claim that the United

States should be. The accountants were but the instrumentality of the United

States in making out an account. When it was placed in the Interior Department

it was as much within the discretion of the Secretary to accept and adopt it or to

remand it for alterations and corrections as a thing could be. He was the

representative of the United States under whom the agreement had been made,

and he was the authority under which the account had been made out, and when

he transmitted it to the Cherokee Nation his transmission was the transmission

of the United States. When the account was thus received by the Cherokee

Nation (May 21, 1894), the 'twelve months' of the agreement, within which the


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simple interest against the government, a fortiori must compound interest be

denied to appellant, unless provision therefor is made in the contract of 1891, or

in the statute of 1919 authorizing this suit, and it is to be found in neither.

34 Further support for the claim of the appellant is said to be found in the sixth

article of the agreement, quoted above, in the language, 'so long as the money

or any part of it shall remain in the Treasury of the United States after thisagreement shall have become effective, such sums so left in the Treasury of the

United States shall bear interest at rate of 5 per cent. per annum, payable

semiannually.' It is said that this should be construed to refer not only to the

balance unpaid of the $8,595,736.12 but also to the money on the old claims

found to be due under the agreement, because payment of the latter was part of

the consideration for the land. A careful examination of the sixth article shows

that this clause referred only to the new money consideration to be paid, and

really only to the part of that which, after it fell due and was ready for payment,should be voluntarily left in the Treasury by the Cherokee Nation. It did not

even refer to the originally deferred payments because those payments were to

bear only four per cent. interest. In any view, it did not and could not refer to

amounts due on past account, because at the time the agreement of 1891 was

made they were not fixed in amount and awaited a possible adjudication to

determine them, and full treatment of them was given in article 4 of the

agreement. The sixth article did not apply to them at all.

35 It is further argued that the payment of compound interest is to be supported

here under the provisions of the Treaty of July 19, 1866, 14 Stat. 799, 805, art.

23, which reads as follows:

36 'All funds now due the Nation, or that may hereafter accrue from the sale of

their lands by the United States as hereinbefore provided for, shall be invested

in United States registered stocks at their current value, and the interest on all

said funds shall be paid semiannually on the order of the Cherokee Nation.'And by section 3659 of the Revised Statutes (Comp. St. s 6667) re-enacting

section 2 of the Act of Congress of September 11, 1841, 5 Stat. 465, which

provides:

37 'All funds held in trust by the United States, and the annual interest accruing

thereon, when not otherwise required by treaty, shall be invested in stocks of

the United States, bearing a rate of interest not less than five per centum per

annum.'

38 It is urged that the largest itme of $1,114,000 was taken out of a $5,000,000


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trust fund held by the United States for the benefit of the Cherokees, and

therefore that it should be treated as if it were always in the Treasury of the

United States, held in trust for the Indians, and as if the United States had

collected the interest thereon out of the invested stocks, and had refused to pay

it over as annuities to the Indians. This claim proves too much. It would require

compound interest brought about by annual or semiannual rests for near a

century, on amount that the Solicitor General suggests would be equal to thenational debt. The argument is shown to be wholly without support in the

circumstance that the Cherokees and the United States, by the resolution of the

Senate in 1850, agreed upon the interest for such debts as that of 5 per cent.

until paid. Moreover the ratification by the Cherokees of the Slade and Bender

report foreclosed any such claim.

39 After the judgment was rendered in 1906 by this court, affirming that of the

Court of Claims, the Treasury had some difficulty in deciding how the interestwas to be calculated on the amounts declared in the judgment. We have no

doubt that the judgment should have been paid in accordance with its exact

terms, namely, with simple interest down to the time of actual payment, and

that the intervention of the judgment of 1906 made no difference in the

calculation of the interest. This is the necessary effect of the judgment.

40 The Treasury was troubled by the provision of Act Sept. 30, 1890, 26 Stat. 504,

537, § 1 (Comp. St. § 6406), which provides as follows:

41 'That hereafter it shall be the duty of the Secretary of the Treasury to certify to

Congress for appropriation only such judgments of the Court of Claims as are

not to be appealed, or such appealed cases as shall have been decided by the

Supreme Court to be due and payable. And on judgments in favor of claimants

which have been appealed by the United States and affirmed by the Supreme

Court, interest, at the rate of four per centum per annum, shall be allowed and

paid from the date of filing the transcript of judgment in the TreasuryDepartment up to and including the date of the mandate of affirmance by the

Supreme Court: Provided, that in no case shall interest be allowed after the

term of the Supreme Court at which said judgment was affirmed.'

42 It is quite clear that the statute applies where judgment against the United

States bear no interest, and certainly not to one in which the judgment itself

provides for a certain rate of interest after its entry. The above statute was

framed in order to impose a penalty on the United States for its unsuccessful

effort by appeal to defeat the judgment against it. It only allows interest

pending the appeal from the date of filing the transcript in the Treasury

Department to the date of the mandate of affirmance. The Treasury Department


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seems to have applied this statute with respect to all the four items of the

judgment of 1906.

43 By the Act of June 30, 1906, 34 Stat. 634, 664, Congress made appropriation

for the payment of the judgment of the Court of Claims, principal and interest,

as follows:

44 'To pay the judgment rendered by the Court of Claims on May eighteenth,

nineteen hundred and five, in consolidated causes numbered twenty-three

thousand one hundred and ninety-nine, The Cherokee Nation versus the United

States; numbered twenty-three thousand two hundred and fourteen. The Eastern

Cherokees versus The United States; and numbered twenty-three thousand two

hundred and twelve, The Eastern and Emigrant Cherokees versus The United

States, aggregating a principal sum of one million one hundred and thirty-four

thousand two hundred and forty-eight dollars and twenty-three cents, as thereinset forth, with interest upon the several items of judgment at five per centum,

one million one hundred and thirty-four thousand two hundred and forty-eight

dollars and twenty-three cents, together with such additional sum as may be

necessary to pay interest, as authorized by law.'

45 This act was further amended by the Act of March 4, 1909, 35 Stat. 907, 938,

939, as follows:

46 'That the general deficiency appropriation act of June thirtieth, nineteen

hundred and six, so far as the same provides for the payment of item two of the

judgment of the Court of Claims of May eighteenth, nineteen hundred and five,

in favor of the Eastern Cherokees, shall be so construed as to carry interest on

said item two up to such time as the roll of the individual beneficiaries entitled

to share in said judgment shall be finally approved by the Court of Claims, and

for the payment of said interest a sufficient sum is hereby appropriated.'

47 Then by section 18 of the Act of June 30, 1919, 41 Stat. 3, 21, Congress

provided for the payment of certain interest on items 1 and 4 of the judgment.

The provision in this section as to item 1 seems to have been largely an

overpayment. That as to item 4 seems also to have involved a considerable

overpayment though it also included 10 years' interest due on the principal

under the judgment which by the government's error was not embraced in the

payment under the act of 1906.

48 The sum of all payment actually made under the judgment of 1905 was as

follows:


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Page 495

On July 2, 1906, to the Secretary of the

Interior on account of said item 1........................ $ 11,52

On the same date on account of item 3......................... 1,14

On the same date on account of item 4........................ 23,29

On July 14, 1906, to the attorneys for the

Eastern Cherokees and the Eastern

Emigrant Cherokees, fees amounting to...................... 740,55

On November 3, 1906, to the attorneys

for the Cherokee Nation on account of

item 2, fees amounting to.................................. 148,24

On various dates after July 2, 1906, and

before final distribution of the fund arising from item 2, to Guion Miller

for fees and expenses the sum of........................... 103,74

On and after March 15, 1910, to Guion

Miller for per capita distribution

among the Cherokees entitled to share

in the fund the sum of................................... 4,105,81

On or about August 7, 1919, additional

interest on item 4, pursuant to the Act of June 30, 1919............................................ 21,50

On or about August 7, 1919, to the

Secretary of the Interior as additional

interest on item 1, pursuant to the said

Act of June 30, 1919......................................... 2,18

----

Making a total sum, principals and

interest of............................................. $5,158,00

The delay in the payment of the largest ites was due to the desire to comply with the

ruling of the Court of Claims, concurred in by this court, that the money of the large

claim should be distributed to the individual members of the Eastern Cherokees

according to rolls to be made up of those individuals. 40 Ct. Cl. 332; 26 S. Ct. 588,

202 U. S. 119, 130, 50 L. Ed. 949. This is what led to the amendment of 1909.

49

50

51 It is quite clear that the mistake made by the Treasury, and by Congress, too, in

attempting to carry out the judgment of this court, was in assuming first that 4 per cent. should be allowed on the total of all items and interest between the

date of filing the transcript of the judgment in the Treasury Department and the

date of the mandate of arrirmance by the Supreme Court, as already pointed


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out. A further mistake was made in calculating interest at 5 per cent. after the

date of affirmance by this court on the total of the judgment and the interest

until final payment. It should have been confined to interest on the principal

sums. The eighth finding of the Court of Claims shows in more or less detail

how the interest was calculated. The methods adopted we have already

criticized. The Solicitor General in his brief makes it evident that in the case of

no one of the four items is the amount which has been actually paid less thanthat which should have been paid down to the day of payment, in accordance

with the judgment, including the principal and 5 per cent. simple interest to the

date of payment. There is no attempt on the part of the appellant to question the

demonstration of this fact. The truth is that the errors in the calculation

increased by a substantial sum the amounts which under the judgment should

have been paid. As this was more favorable than it should have been to the

Cherokees, they can not complain. On this appeal, under the act of 1919, and in

compliance with its requirement, we hold that there is no more interest due tothe Cherokees beyond that which they have already received. The government

is not in a position, in view of the fact that the errors referred to have been

embodied in legislation, and the overpayments have been made by direction of

Congress, to seek to recover them back. Indeed it has not attempted to do so.

52 The judgment of the Court of Claims is affirmed.

Cherokee Nation v. United States, 270 U.S. 476 (1926)

Documents

Transcript of Cherokee Nation v. United States, 270 U.S. 476 (1926)